The second major issue in the Alvin Barnes v. State of Mississippi appeal centered on the prosecutor's closing arguments. Because Barnes's defense counsel did not object to the statements during the trial, the appellate court had to review the claim under the "plain error" doctrine.

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The Right to Remain Silent vs. "Smoke and Mirrors"

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It is a fundamental constitutional rule that a prosecutor may not directly comment on a defendant's failure to testify, nor refer to it by innuendo or insinuation.

During closing arguments, the prosecutor in the Barnes trial told the jury not to be fooled by "smoke and mirrors" and stated:

 

"He's trying to hide behind his defense attorneys and behind that smoke and mirror."

Barnes argued that this was an illegal, prejudicial commentary on his choice not to take the witness stand.

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The Court's Distinction

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The Mississippi Court of Appeals drew a critical legal distinction that researchers and trial lawyers must remember: There is a difference between commenting on a defendant's failure to testify and commenting on a defendant's failure to put on a successful defense.

Upon reviewing the trial transcript, the Court found that the prosecutor was highlighting the bravery of the 15-year-old victim for testifying, while categorizing the defense attorneys' arguments as distractions ("smoke and mirrors"). The appellate court concluded that the prosecutor did not insinuate that Barnes was guilty simply because he remained silent. Therefore, no unjust prejudice was created, and the conviction was affirmed.